Author: Abraham Thomas
Publication: The Pioneer
Date: November 11, 2006
Affidavits filed separately have many paragraphs
in common
Not long after the Government declared in
Supreme Court that Shariat courts exist in the country as "alternate
dispute resolution" mechanisms, doubts are beginning to surface on the
motive behind its claim.
The root cause of such apprehension is that
the affidavit by the Centre has extensively culled out portions from the All
India Muslim Personal Law Board's (AIMPLB) affidavit filed in court. Call
it coincidence or an error, this is bound to bolster those pointing fingers
at the UPA Government's complicity with the largest "representative body"
of Muslims in the country.
The affidavits were filed in court after directions
were issued by a Bench hearing a public interest litigation by one advocate,
Vishwa Lochan Madan, who alleged that Shariat courts were a system of parallel
courts which could be given the authority to adjudicate disputes, other than
those established under law.
The two affidavits - by the Centre and the
AIMPLB - bear a stark resemblance with paragraphs repeating in the same order,
form and content. What is more shocking is the common grounds adopted by the
AIMPLB and the Centre in declaring the body of Muslim clerics, referred to
as Dar-ul Qaza / Nizam-e-Qaza as "not in derogation of or in conflict
with the official/recognised judicial system in India."
For instance, paragraph 3 in the Centre's
affidavit begins describing the AIMPLB's representative character, which finds
mention in the other affidavit in para 3 in the same number of words. The
Centre however has been careful in deleting some lines finding mention in
the AIMPLB's response to avoid being misunderstood as a prototype.
The latter too has sought to draw a distinction
by providing information in excess to what finds mention in the Centre's affidavit.
Both proceed by submitting that "Dar-ul Qaza and Nizam-e-Qaza are interchangeable
terms" and go on to suggest, "the institution of Dar-ul Qaza has
never been and is not in derogation of or in conflict with the official/recognised
judicial system in India." Since history cannot be reserved as the sole
prerogative of any single authority, both affidavits have followed the same
pattern of sentences to trace the legislative history of Dar-ul Qaza.
The affidavits even bear resemblance in the
manner where fatwas are described to be issued by muftis and are advisory
in nature. Both maintain "they (fatwas) are not mandatory and do not
compel any person to follow them and also do not compel any person not to
approach courts established by law for adjudication of their disputes."
The subsequent paragraphs in the two affidavits
find concurrence in according Dar-ul Qaza as an alternate dispute resolution
mechanism which provides "an informal justice delivery system which attains
its objective of bringing about amicable settlement between the parties."
The Centre has proceeded cautiously by choosing
to pick certain portions from AIMPLB affidavit alone. For instance, AIMPLB
has stated in its reply: "The Respondent No 9 (AIMPLB) has a unique position
in the Muslim community and enjoys support of overwhelming section of the
Muslim community."
The preceding paragraph finds mention in Centre
affidavit except for the above sentence, seeking to avoid controversy in the
light of several Muslim organisations staking claim for this title.
The example of England as a non-Islamic country
having an unofficial Sharia'h Panchayat finds mention in the two affidavits.
However the Centre has avoided taking sides with the AIMPLB in its submission
stating "informal justice delivery system is part of multiculturalism."
Carbon copy or coincidence?
* It is submitted that the functioning of
Dar-ul-Qaza falls within the ambit of Articles 25 and 26(b) of the Constitution.
* It is submitted that the Mufti has no authority
or powers to impose his opinion and enforce his fatwa on anyone either by
imposing any penalty as a fine or send him to jail. Even the seeker of opinion
is not bound to follow the opinion.
* In number of cases Courts of law have accepted
the decision of Dar-ul-Qaza and made them rule of the court and passed decrees
accordingly. The courts have examined the records of Dar-ul-Qaza as part of
evidence, Naib Qazi of Dar-ul-Qaza have appeared before the courts as witnesses
to testify to these records.
